Maryland’s Failure to Desegregate Its Historically Black Institutions: Policies And Practices Rooted In The De Jure Era The Coalition For Equity And Excellence In Maryland Higher Education et al. v. Maryland Higher Education Commission Plaintiffs’ Opening Statement January 3, 2012
Maryland’s Affirmative Obligation Under Fordice “Our decisions establish that a State does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation.” U.S. v. Fordice , 505 U.S. 717, 728 (1992). 2
Maryland’s Traceable Policies 3 Policies/Practices Traceable to De Jure Era Limited Missions: Maryland Assigns Limited Roles and Missions To Historically Black Institutions (“HBIs”) Underfunding: Maryland Underfunds HBIs, Including Through Mission-Driven Funding Formula Program Duplication: Maryland Unnecessarily Duplicates Programs and Fails to Provide Unique High Demand Programs at the HBIs 3
The Definition Of “Policy” “A plan or course of action adopted by Dictionary government, ruler, political party, etc” New World Dictionary, 2nd Edition “It is important to state at the outset that we make no effort to identify an exclusive list of Fordice unconstitutional remnants of Mississippi’s prior de jure system…. With this caveat in mind, we address four policies of the present system: admissions standards, program duplication, institutional mission assignments, and continued operation of all eight public universities.” Fordice , 505 U.S. at 733 (emphasis added). 4
A “Policy” Need Not Be Written Regulations In Spell v. McDaniel , the 4 th Circuit affirmed the district court’s definition of a “municipal policy” as including “not only ‘official policy directives, regulations or ordinances,’ but ‘what the law considers de facto or in fact practices, custom, or policies caused, maintained, tacitly encouraged or condoned’ . . . ‘even though these ... have at no time received formal approval through the local government's decision making channels.’” 824 F.2d 1380, 1397-98 (4th Cir. 1987) (emphasis added). 5
“Practice” Refers To State Action “ To do or engage in frequently” Dictionary New World Dictionary, 2nd Edition “Thus, even after a State dismantles its Fordice segregative admissions policy, there may still be state action that is traceable to the State’s prior de jure segregation and that continues to foster segregation.” Fordice , 505 U.S. at 729. 6
The Legal Definition Of Practice Is The Same As The Dictionary Definition Moseke v. Miller and Smith, Inc ., 202 F. Supp. 2d 492 (E.D. Va. 2002) • The court noted ‘little has been written in the federal courts…about the meaning of the term ‘practice.’” Id. at 502. Looking to Black’s Law Dictionary, the court accepted the plain meaning of “practice” as: “Repeated or customary action; habitual performance; a succession of acts of similar kind.” Id . • The court also looked to the Random House Dictionary, which defined “practice” as: “[H]abitual or customary performance; operation; habit; custom; repeated performance or systematic exercise.” Id . at 502-03. • As a result, the court read an occurrence of a discriminatory practice to constitute an event or incident that encompasses a discriminatory action. Id. at 503 7
Unnecessary Program Duplication Under Fordice “It can hardly be denied that such duplication was part and parcel of the prior dual system of higher education —the whole notion of ‘separate but equal’ required duplicative programs in two sets of schools — and that the present unnecessary duplication is a continuation of that practice. ” Fordice , 505 U.S. at 738 (emphasis added). 8
The Definition of “Traceable” Is Not Hyper-Technical “Evidence or an indication of the former presence or existence of something; a Dictionary vestige” Referring to traceable policies/practices as Fordice “remnants” -- E.g., Fordice , 505 U.S. at 733. 9
Proving Traceability Is Not A High Hurdle Justice Thomas Concurrence in Fordice “Plaintiffs are likely to be able to identify, as these plaintiffs have identified, specific policies traceable to the de jure era that continue to produce a current racial imbalance. As a practical matter, then, the district courts administering our standard will spend their time determining whether such policies have been adequately justified-a far narrower, more manageable task than that imposed under Green. A challenged policy does not survive under the standard we announce today if it began during the prior de jure era, produces adverse impacts, and persists without sound educational justification. ” Fordice , 505 U.S. at 746. 10
3 Specific Policies/Practices De Jure Era Polices/Practices Current Policies/Practices Maryland Assigned HBIs More Limited Maryland Assigns HBIs More Limited Roles and Missions Roles and Missions Maryland’s Knowingly Underfunds Its Maryland Knowingly Underfunded Its HBIs HBIs through Formula Maryland Unnecessarily Duplicated Maryland Unnecessarily Duplicates Programs and Failed to Establish Programs (Including over the objection of the Attorney General’s Office) and Unique High Demand Programs Provides Few Unique, High Demand Programs 11
Maryland has Conceded that Program Duplication and Limited Missions are Traceable 12
2005 Attorney General Opinion: Policies are Traceable to De Jure Era “There is no doubt that Maryland operated de jure segregated public higher education programs before 1969 when OCR found the State in violation of Title VI, and that some policies, such as program duplication at geographically proximate schools, are traceable to that era. ” PTX 698 at MDED-0047532, emphasis added 13
Asst. AG’s Objection To Duplication Of Morgan’s MBA Program in 2005 Also Finds Traceability “Unnecessary program duplication is part and parcel of the prior segregated system of higher education in Maryland. Under these circumstances, approval of the proposed program would be a continuation of a policy and practice, at least in this instance, that is a vestige of the prior segregated system. Rather than eliminating a vestige of the dual system, the State would be maintaining a vestige. ” PTX 14 at MSU-00003651-52, emphasis added. 14
Maryland Concedes Program Duplication and Limited Missions are Traceable in 2006 Committee I Report (PTX 8 at MDED-00018955.) 15
The 3 Challenged Policies Affect Student Choice “Two broad categories of practices … inhibit “free choice” by students as to university attendance. The first category comprises policies that have the effect of discouraging or preventing blacks from attending HWIs … . The second category consists of policies that discourage whites from seeking to attend HBIs, examples of which include: duplication of programs at HBIs and HWIs in the same geographic area; the assignment to HBIs of institutional missions that restrict them to programs of instruction that cannot effectively attract whites; and the failure to fund HBIs comparably to HWIs or to locate high-prestige programs at HBIs. As a result of such policies, disproportionate numbers of whites can satisfy their curricular desires at HWIs, and cannot satisfy them at HBIs, thereby discouraging them from choosing to attend HBIs. ” Knight v. Alabama , 14 F.3d 1534, 1541 (11 th Cir. 1994). 16
Overview of Maryland’s De Jure History • Chronicled in official state reports from the de jure era through the present • Put HBIs at a tremendous disadvantage in comparison to the TWIs 17
“Enormous Differential In Favor of The White Race” “In the field of higher education, while the State has fostered white colleges for one hundred and fifty years it made its first grant to a Negro college in 1914 or twenty-two years ago . … The contrast between the amounts of money received by the two racial groups would show, if possible of compution, an enormous differential in favor of the white race.” (PTX 17 at CET-00004305, emphasis added.) 18
1937: “Deficiencies” in Curriculum, Library and Labs “On the academic side, the curriculum has always been weak because of lack of adequate library and deficiencies in instruction in modern languages, but more especially in laboratory work in the sciences.” “One doubts that the equipment is sufficient to offer the most elementary courses in the physical sciences. In comparison with the numerous laboratories at the University of Maryland, replete with modern apparatus … .” (PTX 17 at CET-00004179, CET-00004220.) 19
1937: Limited De Jure Program Offerings PTX 17 at CET-00004194 20
1937: Limited De Jure Program Offerings PTX 17 at CET-00004195 21
1937: Discrimination Limited Growth of Historically Black Institutions “From these figures we may reasonably conclude that the enrollment of white state- aided institutions is very much more stimulated by the aid given than is the case with the Negro institutions. We may also conclude that the enrollment in the Negro institutions would be very considerably greater if State aid to Negro students were on a par with that offered white students. ” (PTX 17 at CET-00004231.) 22
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